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Councilman's arrest raises eligibility questions

A Fountain City Town Council member's third arrest on charges of operating while intoxicated has generated questions about how someone with a criminal history can be elected.

Councilman Jesse Berger, 25, was arrested by three Wayne County Sheriff's Office patrolmen at 6:18 a.m. Thursday at South Walnut Street and Fountain Avenue in Fountain City after officers responded to the report of a single-vehicle accident.

Sheriff Jeff Cappa said officers located Berger in the front seat of a black Cadillac and, according to the officers' report, Berger showed signs of being intoxicated.

Berger has been charged with two counts of operating while intoxicated (a Level 6 felony and a Class A misdemeanor), possession of paraphernalia (a Class A misdemeanor), resisting law enforcement (a Class A misdemeanor) and disorderly conduct (a Class B misdemeanor).

Cappa said Berger refused to follow officers' directions at the scene, resulting in the resisting law enforcement charge.

Berger was taken to Reid Health for toxicology tests and an examination after the accident. The county still is awaiting the test results, Cappa said.

Berger was lodged in the Wayne County Jail until Saturday morning, when he was released because formal charges haven't yet been filed.

Berger has two misdemeanor convictions for operating while intoxicated for incidents in 2011 and 2014 and one misdemeanor conviction for possession of a controlled substance for an incident in 2011, according to Wayne County court records.

When Berger ran unopposed for an at-large seat on the Fountain City Town Council in 2015, his previous charges had been resolved and he had completed his sentences for the misdemeanors.

Indiana law (IC 3-8-1-5) disqualifies candidates and elected officials, such as town council members, who have been convicted of a felony. The law doesn't disqualify candidates who have misdemeanor convictions.

Wayne County Clerk Debra Berry said when someone files a declaration for candidacy form, there's a portion that requires the candidate to swear that he or she complies with the requirements for a candidate, including that he or she hasn't been convicted of a felony.

"It's on the honor system," Berry said.

The county clerk and the county election board don't do background checks on candidates, she said.

"We don't do anything until someone files a challenge," Berry said. "We have never received a challenge on (Berger's) position."

Although Berger's previous convictions ultimately were entered as misdemeanors, in one case — the 2014 arrest — as part of his plea agreement, he initially pleaded guilty to a Level 6 felony that then was reduced to a Class A misdemeanor at his sentencing hearing.

Pleading guilty to a Level 6 felony as part of a plea agreement has raised the question as to whether or not Berger should have been allowed to take office under subsections (c) and (d) of IC 3-8-1-5, which state:

"(c) A person is disqualified from assuming or being a candidate for an elected office if: (3) in a: (A) jury trial, a jury publicly announces a verdict against the person for a felony; (B) bench trial, the court publicly announces a verdict against the person for a felony; or (C) guilty plea hearing, the person pleads guilty or nolo contendre to a felony;

"(d) The subsequent reduction of a felony to a Class A misdemeanor under IC 35-50-2-7 or IC 35-38-1-1.5 after the: (1) jury has announced its verdict against the person for a felony; (2) court has announced its verdict against the person for a felony; or (3) person has pleaded guilty or nolo contendere to a felony; does not affect the operation of subsection (c)."

Berry said the law is clear where it refers to disqualifying candidates and elected officials, such as town council members, who have been convicted of a felony, but it's open to interpretation in regards to a guilty plea to a felony charge that results in a misdemeanor conviction.

"(Berger) pled guilty, but his conviction was for a misdemeanor," Berry said. "It's an interpretive problem."

Under her interpretation of the law, Berry said Berger was eligible to be a candidate and an elected official. Berry consulted with the co-legal council for the Indiana Election Division and she said the legal counselor supported her interpretation.

"Until he is convicted (of a felony), (Berger) can go on serving, unless he is challenged," Berry said.

If Berger's eligibility were to be challenged, the Wayne County Election Board would set up a hearing on the issue, Berry said.

Stephen Hunyadi, attorney for the town of Fountain City, also agrees with the interpretation that Berger was eligible for election in 2015 and has remained eligible to hold a council seat.

"Mr. Berger, to my knowledge, was not convicted of a felony," Hunyadi said in an email. "The Court either pursuant to IC 35-50-2-7 (B), entered judgement of conviction following the guilty plea to the felony accepted, of a Class A misdemeanor, or Berger negotiated a plea whereby he was allowed to plead to a Class A misdemeanor in the first place. In other words, Berger, although (he) was charged with a (Level 6) felony in ... 2014 ... (he) was not convicted of a felony but only of A misdemeanors. The key is that his convictions are for misdemeanors and not felonies.

"Given the above, Berger was properly serving as a member of the town council upon his election as he had not been convicted of a felony," Hunyadi said.

Indiana law offers several ways an elected official, if convicted of a felony or a misdemeanor while holding office, might be disqualified or subjected to impeachment. However, none of those circumstances can be applied to Berger's current situation until his most recent arrest and charges are resolved by the court system.

In the event an elected official is convicted of a felony, Berry said, it's the judge's responsibility to file a hearing notice to let the party chairman know the office holder was disqualified and would require a replacement.